고령자･장애인 인권보호의 관점에서 본 민사소송법 개정안의 특징

Abstract

Under the new adult guardianship system, whether or not an adult has the capacity to do legal transactions is, in principle, to be determined at the event of making relevant decisions, except the cases where a full guardian is appointed or where a limited guardian is appoint with the power of consent to legal transactions of a person under limited guardian reserved on a guardian. The Civil Code provisions related to the capacity to do legal transactions therefore contradict those of Civil Procedure Act, where any adult under guardianship is deprived of legal capacity to litigation unless the person under limited guardianship is allowed to do legal transactions alone(Article 55 Civil Procedure Act). Since the new Adult Guardianship Act 2011 by way of the revision of Korean Civil Code came into force as from 1st July 2013, it has been imminent to revise the Civil Procedure Act provisions relevant to the litigation capacity of mentally or intellectually disabled adults. At the same time, it has been expected for the UN CRPD provisions relevant to the protection of persons with impairments to decision making abilities, especially due to dementia, developmental disabilities, mental illness and brain injury, to be reflected to the revised legislation of Civil Procedure Act. The Draft Amendments of Civil Procedure Act, prepared by the Ministry of Justice, reflects such a demand to the effect that the provisions of UN Convention on the Rights of Persons with Disabilities are as much as possible respected unless they are incompatible with Korean current civil law regime. This paper describes the main features of the draft Amendments of Civil Procedure Act from the perspective of the protection of human rights of elderly and disabled persons, with comparison of civil procedure laws of Germany, England and Canadian Ontario.